Maggo v Minister for Immigration
[2014] FCCA 1777
•9 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAGGO v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1777 |
| Catchwords: MIGRATION – Migration Review Tribunal – Contributory Parent (Migrant) (class CA) visa – no matter of principle – application dismissed. |
| Legislation: Migration Regulations 1994 |
| Applicant: | PARAM PAL SINGH MAGGO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 2107 of 2013 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 9 July 2014 |
| Date of Last Submission: | 9 July 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 9 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Solicitors for the Applicant: |
| Counsel for the Respondent: | Mr Wood |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed 3 December 2013 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2107 of 2013
| PARAM PAL SINGH MAGGO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Revised from Transcript)
This is an application for judicial review of a decision of the Migration Review Tribunal, dated 13 November 2013. In that decision, the Tribunal affirmed a decision of a delegate dated 20 July 2012 refusing the applicant a Contributory Parent (Migrant) (class CA) visa. The conditions for this visa are set out in clause 143 of the Migration Regulations 1994.
The applicant is an Indian national who arrived in Australia on 3 May 2010 on a contributory parent subclass 173 visa, which was current until 3 May 2012. The applicant was sponsored by his adult daughter in this application. The delegate’s refusal to grant the applicant a visa was based upon the fact that he no longer had a sponsor as required by clause 143.212 of the Regulations.
The applicant lodged an application for review to the Tribunal in August 2012 and the Tribunal refused his application. The Tribunal set out the submissions that he made to it in their Reasons, including:
11. The applicant lodged an application for a Subclass 143 Contributory Parent visa on 1 May 2012. The applicant did not lodge a Form 40 (sponsorship for migration to Australia) with his application.
12. Despite requests by the delegate to the applicant’s then migration agent the Form 40 was not submitted by the applicant. Accordingly on 20 July 2012 the delegate found that the applicant did not meet the requirements of cl.143.212 and refused the application.
…
19. The applicant’s evidence to the Tribunal as it is relevant to the matter under review:
• The applicant told the Tribunal that his daughter had originally sponsored him for his Subclass 173 visa but she refused to sponsor him for the Subclass 143 visa;
• The applicant said that his daughter refused because she had wanted him to hand over his property to his wife’s family but he had refused. The applicant said that his daughter wanted him to hand over his land to family and then she would sponsor the applicant;
• The applicant said that when he refused his daughter and his wife had made him leave the house;
• The applicant told the Tribunal that he had established a courier business in Australia and he could provide financial documents to show that he had more than enough funds available as a contribution to this visa;
• The applicant said that he had nothing to return to in India and that his wife’s brothers may exact some type of revenge on him for not giving up his land;
• The applicant told the Tribunal that his daughter [R] is divorced and his son [M] who also resides in Australia is also divorced. He had no other children in Australia;
• The applicant asked for time to provide additional material. The Tribunal discussed the chronology of the visa application for review and informed the applicant that he had been put on notice about the deficiencies in his application in the decision record and he had had sufficient time to provided additional material to the delegate and the Tribunal and he had not. The Tribunal having regard to the circumstances of this matter declined to give the applicant and extension of time;
• The applicant asked the Tribunal for advice as to what he should do and the Tribunal told the applicant that he should seek appropriate advice to clarify his future options.
The Tribunal then went on to make findings with respect to these claims saying:
21. At the time of application a mandatory requirement for the grant of a Subclass 143 visa is that the applicant is sponsored in accordance with the Regulations.
22. The evidence before the Tribunal held in the Departmental file and referred to in the decision record, a copy of which the applicant provided for the purposes of this review, and confirmed by the applicant at the Tribunal hearing is that he is not sponsored in accordance with the requirements of the Regulations: cl.143.212.
23. The applicant has given reasons why his daughter refused to sponsor him in the current application and how this related to alleged extortion of the applicant by his daughter over land held by the applicant in India. The applicant told the Tribunal that he had a son who resides in Australia but he also refused to sponsor him. The applicant confirmed that both of his children who reside in Australia are themselves divorced or separated and accordingly neither have cohabiting spouses or de factor partners who may be able to assist the applicant to meet the alternative in cl.143.212(2)(a).
24. On the evidence before the Tribunal cl.143.212(3) and cl.143.212(4) are not applicable.
25. The Tribunal has had regard to the reasons for his daughter’s and son’s refusal to sponsor him however the Tribunal has no discretion to waive this mandatory requirement for the grant of the Subclass 143 visa.
This case turns upon the interpretation of clause 143.212 of the Regulations. The Tribunal set out the terms of that clause at paragraph 7 of the Decision as follows:
7. Relevant to this matter cl.143.212 requires the applicant at the time of application to be sponsored in accordance with the Regulations:
(1) The Applicant is:
(a) sponsored in accordance with subclause (2) or (3); or
(b) taken, under subclause (4), to be sponsored in accordance with this clause.
(2) If the child has turned 18, the applicant is sponsored by:
(a) the child; or
(b) the child’s cohabiting spouse or de facto partner, if that spouse or de factor partner:
(i) has turned 18; and
(ii) is:
(A) a settled Australian citizen; or
(B) a settled Australian permanent resident; or
(C) a settled eligible New Zealand citizen.
(3) if the child has not turned 18, the applicant is sponsored by:
(a) the child’s cohabiting spouse, if that spouse:
(i) has turned 18; and
(ii) is:
(A) a settled Australian citizen; or
(B) a settled Australian permanent resident; or
(C) a settled eligible New Zealand citizen.
(b) a person who:
(i) is a relative or guardian of the child; and
(ii) has turned 18: and
(iii) is:
(A) a settled Australian citizen; or
(B) a settled Australian permanent resident; or
(C) a settled eligible New Zealand citizen.
(c) if the child has a cohabiting spouse but the spouse has not turned 18 – a person who:
(i) is a relative or guardian of the child’s spouse; and
(ii) has turned 18; and
(ii) is:
(A) a settled Australian citizen; or
(B) a settled Australian permanent resident; or
(C) a settled eligible New Zealand citizen.
(d) a community organisation.
(4) The applicant is taken to be sponsored in accordance with this clause if:
(a) the applicant:
(i) is the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application; or
(ii) both:
(A) was the holder of a Subclass 173 Contributory Parent (Temporary)) visa at the time of application; and
(B) is the holder of a substituted Subclass 676 visa at the time of application; and
(b) the person who sponsored the applicant for the Subclass 173 (Contributory Parent (Temporary)) visa dies before the Subclass 173 (Contributory Parent (Temporary)) visa ceases to be in effect; and
(c) there is no other sponsor available who could meet the requirements set out in subclause (2) or (3).
It appears that this particular clause has not been altered since 2006. In any event, it is the version of the clause at the time of application that must be applied (see 143.21).
The applicant set out his grounds of application in his review application as follows:
1. That MRT has refused my review application without considering all facts
2. MRT has not provided me any opportunity to defend myself while I was having medical condition.
3. MRT has not used its discretion to allow a resonable time to collect and produce evidence to support my review application.
The applicant did not file any written submissions or affidavit evidence but developed these grounds into a number of specific points that he argued before me.
The first point is that the conditions as applied by the Tribunal from the regulation were not correct. He supported this point by tendering a printout from what appears to be the website of the Department, which says:
Features
This visa lets parents of an Australian citizen, permanent resident or eligible New Zealand citizen live in Australia.
Requirements
You might be able to get this visa if you:
- are sponsored or
- hold a temporary Contributory Parent visa (subclass 173)
- Meet the balance-of-family test
- are prepared to pay higher visa application charges for faster processing.
A simple reading of this very brief overview of the visa conditions for subclass 143 visas gives the impression that one could possibly obtain this type of visa either if one is sponsored or if one held a subclass 173 visa. The applicant certainly held a subclass 173 visa.
The conditions that the Tribunal had to consider were not the summary created on the Department’s webpage but the specific conditions in the Regulations. Those conditions require that the applicant be sponsored by a child over 18 or their spouse, which was not the case here, or if the child has not turned 18, there is involvement of a community organisation.
In this case, there is not a child under 18. Alternatively, the requirement for a sponsor may be waived or deemed to be met if the child is deceased; again, this is not the situation here. In the circumstances, it appears clear that the applicant was unable to meet the criteria in cl. 143.212.
Even if the brief description on the website were to be considered misleading, it does not change the law and create a situation where the Department is obliged to provide the applicant with a visa.
The applicant also presented an argument that he has a company in Australia which has assets and which is paying tax. No doubt, this would be relevant for various types of visa applications. I note that for business visa applications, the extent of a person’s assets and business arrangements are usually a key part of the considerations.
In this case, a company is not able to be a sponsor under cl. 143.212. There is no reference that has been presented to the Court to indicate how a company could become a sponsor for this category of visa. In this regard, it was not incorrect for the Tribunal to disregard any suggestions of a corporate sponsor.
The applicant also presented an argument that, at the hearing, he orally sought an adjournment to provide company documents, which was refused. It seems to me that as company documents would not have been relevant to this category it was appropriate for the Tribunal to refuse an adjournment for the purpose of obtaining those documents. The Tribunal does deal, at least briefly, with this issue at the third dot point of paragraph 19, extracted above.
The applicant also raised a claim in the first two dot points of paragraph 19 to the effect that his daughter had been attempting to extort money from him in order to obtain the sponsorship. Whether the daughter in fact attempted to extort or there has simply been a falling out in the family is not clear from the decision and not a matter that I have to make a formal decision about in this case. That is because even if this were as extreme a case as an extortion, it still does not create circumstances where the applicant could be granted a subclause 143 visa, as he still would not meet the criteria for that particular visa.
If circumstances have arisen around a visa application and dealings with sponsors and/or the Department, which the applicant believes create a situation that is extremely unfair, it remains open to him to ask the Minister to exercise a general discretion that may be available under section 195A of the Migration Act1958 (and some other provisions in the Act). However, it is important to note that such discretions are with the Minister for Immigration and it is not appropriate for the Court to make comment or recommendations about how that discretion should be exercised.
The next point that appears to arise from the application is that the Tribunal ought to have granted the applicant an adjournment. This is dealt with in the last two dot points in paragraph 19 and also in paragraph 17, where the Tribunal says,
17. On 8 November 2013 the applicant wrote to the Tribunal seeking a postponement of the hearing for three weeks and provided copies of prescriptions and a medical certificate. The applicant stated that he was ‘not young and living alone …thus he need this time so that I can collect some information and documents required’. The Tribunal noted that the medical certificate written on 6 November 2013 stated that the applicant had attended the clinic and made no reference to a medical condition or a period of time when the applicant may be unfit for work or in this case unable to attend a Tribunal hearing. The Member declined to postpone the hearing and this was communicated to the applicant by a Tribunal officer. The applicant indicated that he would attend the hearing reluctantly.
It seems clear that the Tribunal have considered the requests for adjournment and dealt with whether or not it is appropriate to grant an adjournment. It seems clear that on the facts of this case, there was little point in granting an adjournment as the applicant could not then meet the central criteria for this category of visa, just as on the material he has presented today, he is still unable to meet the essential categories for the grant of this type of visa.
Whether he could meet the criteria for another category of visa is a matter that he will have to seek his own advice about as it is not appropriate for the court to give advice about visa applications.
In the circumstances, I am not persuaded that the Tribunal has made any error of law, nor any error that would be judicially reviewable. In these circumstances, I must therefore refuse the current application.
[Further Argument Ensued]
In this application, the applicant has been unsuccessful. Costs ordinarily follow the outcome of an application. The applicant says that he does not have the money to pay a costs order. This, of itself, is not the basis for refusing to make a costs order in favour of the successful party in litigation. The applicant seeks the scale fee of $6,646. In the circumstances of this case, the scale appears to me to be appropriate. I order that the applicant pay the respondent the sum of $6,646 by way of costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 14 August 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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